About Me

Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. Author of FREEDOM OF RELIGION AND THE SECULAR STATE (2012), HUMANITY ENHANCED (2014), and THE MYSTERY OF MORAL AUTHORITY (2016).

Tuesday, May 12, 2009

The Capistrano case: When can't we call nonsense "nonsense"?

As I discussed a few days ago, the case involved a history teacher in an American public school who made a statement to the effect that Creationism is superstitious nonsense (along with various other seemingly anti-religious comments). He said, referring to a fellow teacher's espousal of Creationism in the school: "I will not leave John Peloza alone to propagandize kids with this religious, superstitious nonsense." The claim that Creationism is superstitious nonsense was found by the court to contravene the freedom of religion clauses in the First Amendment to the US constitution.

There's been much discussion of the Capistrano case in the blogosphere, and it rightly continues to cause concern. Part of the trouble is that what the teacher said was true. Creationism is, in fact, superstitious nonsense. But that's just the problem - it's not just nonsense but superstitious nonsense, just as the Catholic doctrine of transubstantiation is superstitious nonsense, not to mention the more general Christian doctrine of sacrificial atonement, not to mention almost any distinctively religious doctrine that you care to name. However, while that's my opinion, it's not the sort of issue that we want the state to have an opinion about. On matters of religion, the state should be neutral. At the very least, it should not do anything that can be construed as imposing religious opinions on citizens.

It could be asked whether Creationism is really a religious doctrine, but the answer to that clearly seems to be "Yes" - or if it is not exactly a religious doctrine it is something so close that I don't see how it could make any difference in law: it is, at the least, a piece of pseudoscientific doctrine contrived for the purpose of defending more central religious doctrines. Indeed, it is a sham when more sophisticated forms of Creationism, such as Behe-style Intelligent Design, are passed off as not being religious in character and motivation. Because these ideas are religious doctrines, or something indistinguishable from them for relevant purposes, they cannot be taught in American public schools. But if classic forms of Creationism and contemporary forms of Intelligent Design are so closely connected to religion that they can't be taught in public schools, on pain of breaching the First Amendment, then it follows that they are so closely connected to religion that they also can't be taught to be untrue. On that basis, Capistrano seems to be correctly decided. Indeed, a criticism that might be made of the judge is that he bent over backwards to find that many of the teacher's other comments about religion were not First Amendment breaches.

Rightly or wrongly, American constitutional jurisprudence treats individual teachers in public schools as "the state", which means that they must exercise power over children in their charge as if they were an arm of the executive government. That includes neither imposing religion on students nor impeding a student's free exercise of religion.

However, this can be a fine line, and overly-officious application of the principle could and would chill valuable discussions in the classroom. As I mentioned last time, consider such subjects as English literature, where it may be necessary to explore the worldviews (religious or anti-religious) of authors, and to expect the students to explore their own intellectual and emotional responses. How could you teach the poetry of Shelley, for example, without discussing his anti-religious views? How could you teach that of Gerard Manley Hopkins without trying to enter into his religious mindset? It can't be done. Courts must allow teachers a considerable margin for discretion, or it will stifle teaching and learning.

In my previous discussion of the case, I said that teachers in public schools should just teach the science, or the history, or whatever subject it is that they are paid to teach. If some of the content is inconsistent with a student's religion, then it's up to the student to work out the reconciliation. The First Amendment does not give anyone the right to go through life without being exposed to scientific or other knowledge that might happen to be inconsistent with her particular religious beliefs. How could it? People have all kinds of strange beliefs that are inconsistent with research by scientists, historians, and others. A teacher does nothing wrong if simply teaching secular knowledge in a religion-blind way.

I still think that all this is essentially correct, but it has to be added that we live in a world that is very different from that of the US Founding Fathers or John Locke, a world in which many popular religious doctrines now seem to be plainly crazy when measured against robust findings from science. Even if students are left to connect the dots themselves, some are going to find that mainstream, robust scientific conclusions threaten their religious beliefs. This doesn't apply solely to fundamentalist beliefs, such as the belief that God created the world 6,000 to 10,000 years ago. Even the beliefs of relatively moderate or liberal Christians may be threatened for anyone who thinks deeply about such things as the course of evolution. Thus, even if science were taught in a completely religion-blind manner, with the teacher affecting not to know that there are religious doctrines plainly inconsistent with it (and others whose plausibility may be threatened by it), the religious faith of some students would be challenged. Some might take the scientific findings as fact, be unable to square them with religious teachings, and perhaps either lose their faith altogether or at least abandon certain doctrines that they were taught to them by parents and priests.

My point is not that we should therefore abandon the teaching of good, mainstream science. On the contrary, it is that teaching of good, mainstream science should go ahead, and we should accept that it is an inevitable by-product that the faith of some students will come under challenge in their own minds. But why is that a bad thing? No one has a right to go through life never being exposed to facts that might lead her to reconsider her beliefs on religious, moral, social issues, and so on. Attributing such a "right" to a child is just as nonsensical as attributing it to an adult.

Nor do parents have the right that their children not be exposed to ideas that may challenge the parents' teachings. Children are not playdough for parents; we do entrust parents with the care and nurturing of children, within broad limits, but society as a whole has a stake in children growing to adulthood with a sound knowledge of the world, including a basic understanding of science, and good critical skills. We have legitimate secular reasons to teach these to children, even if doing so runs counter to the wish of parents that their children go through life believing in certain religious doctrines. That wish is not something that parents have a right to bring to fruition by all means possible. If the parents are somehow able to teach their children to reject what they are taught are school, the state should not interfere, but nor must it require that parents have unlimited opportunities to brainwash their children.

All that being so, it seems apparent that teachers may teach science in a religion-blind way, leaving it to students to resolve any contradictions or tensions between the findings of science and the religious doctrines that they are taught outside of school. Schools cannot require sincere belief in, say, evolutionary theory, but they can certainly require accurate understanding of it, and that students bracket off any private reservations for the purpose of class discussion and assessment.

But none of this resolves the fact that teachers cannot be expected to be living, breathing law books, constantly worrying about whether something they might say as individuals will be held to breach the constitution. The problem is not so much for science teachers as for teachers of the humanities, who may need to provoke discussion of such issues as the social role of religion. Here, I worry about the triviality of the remark that Creationism is superstitious nonsense. Are we really going to make a court case of it every time an individual teacher expresses an opinion that contradicts a religious belief of one of her students? Should teachers become, not walking law books, but robots without opinions of their own? That could make teaching impossible.

I continue to think, though with a bit less confidence, that Capistrano was correctly decided on its facts and the existing law. A reading of the entire judgment shows that the judge was very alert to the issues that I've raised in this post, and which many others are raising at the moment. Furthermore, the teacher's remark was pretty much gratuitous in the context in which it was uttered, and was sufficiently emotive that it could have been intimidating, especially against a background where he had made many other remarks that were, at best close to the line.

Although the case was not analysed in this way, we could think about it by going back to the First Amendment itself (or even to Locke), rather than to tests in the governing case law. We could then ask whether the remark, in the context in which it was uttered and the larger context of the teacher's pattern of other remarks about religion, would have foreseeably intimidated an ordinary, reasonable individual of the student's age, bearing in mind the power differential between teacher and student. If the answer is "Yes," we can then ask whether that foreseeable intimidation would have amounted to an impediment to the free exercise of the student's religion. It should be clear as a matter of law that merely teaching good, mainstream science, or other mainstream findings of the discipline concerned, cannot amount to intimidation - though extra hurdles to test the sincerity of belief might, in some cases.

If this test, which looks to the Free Exercise clause rather than the Establishment clause, were adopted, with the elements of foreseeability, intimidation, and the effect of the intimidation on an ordinary, reasonable student in the circumstances, Capistrano might still be sustained on its facts. However, a test like this would make it far less likely that school teachers could be caught out for non-gratuitous, non-intimidating remarks, even if they did express (possibly unguarded) opinions on matters of religion.

At the same time, a test such as I'm proposing would make it virtually impossible for university-level teachers to face court proceedings for clearly legitimate expressions of opinion, one way or the other, on, say, the relative strength of arguments for or against the existence of God. Someone teaching philosophy of religion unavoidably ends up expressing personal views on such subjects; they should, however, make clear that no student will be assessed on the basis of her agreement or disagreement with the teacher on such ultimate questions as the existence of God. Assessment will be based on understanding of the material, ability to argue a cogent case, ability to take account of contrary arguments, and so on. (Come to think of it, there's no reason why school students could not be taught such subjects and assessed in such a way - increasingly so as they mature as young adults in the senior years of high school.)

Whether a test such as the one I'm proposing has any prospect of being accepted by the American courts requires a technical knowledge of the existing First Amendment jurisprudence that is beyond my expertise. I'm not a working First Amendment lawyer based in the US; I'm an Australian philosopher with legal qualifications, some experience in Australian legal practice, and research interests in philosophy of law. There's quite a difference. Doubtless some of my American readers will want to comment on the detail of the case law. Still, a test such as I've proposed above seems to me to reflect good teaching practices ... as well as the philosophical basis for religious toleration and a separation church and state in the first place.

I'd like to see the case appealed, not on the point that Creationism is not (something like) a religious doctrine, but on the point that an ordinary, reasonable student would not have been intimidated to the extent that he was, in substance, having a view about religion imposed on him by the state. Let's see what a higher court makes of that argument. Not all disparagement of religion by teachers would meet the standard that it implies, and teachers adopting good practice could meet such a standard without acting like robots. I may be wrong, but that seems to me what's really at stake here.

It might be valuable if Capistrano were pursued on appeal to higher levels of the court system, even if the judgment at first instance were eventually sustained on its facts (including the gratuitous and emotive nature of the "superstitious nonsense" remark). Assuming the money can be found by an organisation such as the ACLU or the relevant trade union, there might be an opportunity for a more fundamental reconsideration of what can reasonably be expected of individual teachers in public schools to ensure conformity with the constitution. Even if it's confirmed that the case has been decided correctly on its facts, there might be an opportunity here for the courts to develop standards that make more sense of the twenty-first-century reality in which many religious doctrines cannot be reconciled with secular knowledge that we want to teach to our young people.

12 comments:

We could then ask whether the remark, in the context in which it was uttered and the larger context of the teacher's pattern of other remarks about religion, would have foreseeably intimidated an ordinary, reasonable individual of the student's age, bearing in mind the power differential between teacher and student. If the answer is "Yes," we can then ask whether that foreseeable intimidation would have amounted to an impediment to the free exercise of the student's religion. If this test, which looks to the Free Exercise clause rather than the Establishment clause were adopted, with the elements of foreseeability, intimidation, and the effect of the intimidation on an ordinary student in the circumstances, Capistrano might still be sustained on its facts. However, a test like this would make it far less likely that school teachers could be caught out for non-gratuitous, non-intimidating remarks, even if they did express (possibly unguarded) opinions on matters of religion.

Not a bad suggestion. Our courts already exercise this kind of balancing, though perhaps not overtly. I'm confident that, without the numerous other "close cases" examined by the court, all, by the way, coming on the same day, lending credence to the student's complaint that this was a consistent pattern with this teacher, the court would have found a way to rule that the one instance was, in fact if not in law, de minimus and dismissed the case.

I do see some potential problems, though. It tends to convert the test to one of fact rather than law, which might not be inapppropriate but seems (from what is said in the case) to run against existing doctrine. Still, that's not a terribly important issue in practice, outside of the context of jury trials.

Also, the free exercise clause seems to be interpreted rather literally by the US courts (both in ways that can broaden its effect from what seems justifiable on first principles and in ways that seem unduly narrow), whereas the establishment clause is seemingly given a very broad and non-literal reading to cover situations where no religion is, any sense, being "established" (American readers might be shocked at how narrowly the equivalent provision in the Australian Constitution has been interpreted by the High Court).

Still, the First Amendment law seems to be in a mess over, for example, the current standing of the Lemon test. Given the public importance of knowing what teachers can and cannot say in class, this does look like a very good case for an appeal court to come to grips with - not so much to overturn the judgment as to give a more authoritative view as to what sorts of standards should apply in situations like this.

As early the 5th century St. Augustine of Hippo warned against a literal interpretation of Genesis. People who do so are what St. Augustine called "people of limited understanding". According to his "Literal Meaning of Genesis", Chapter 19:

"...Christians should not talk nonsense to unbelievers. ...Now, it is a disgraceful and dangerous thing for an infidel to hear a Christian, presumably giving the meaning of Holy Scripture, talking non-sense on these topics; and we should take all means to prevent such an embarrassing situation, in which people show up vast ignorance in a Christian and laugh it to scorn. The shame is not so much that an ignorant individual is derided, but that people outside the household of the faith think our sacred writers held such opinions, and, to the great loss of those for whose salvation we toil, the writers of our Scripture are criticized and rejected as unlearned men."

As for evolution and speciation, Augustine got there more than a millenia ahead of Darwin and addressed this issue in _De genesi contra Manichaeos_:

"In the beginning God made the heaven and the earth, as if this were the seed of the heaven and the earth, although as yet all the matter of heaven and earth was in confusion; but because it was certain that from this the heaven and the earth would be, therefore the material itself is called by that name." Again, as in the foregoing passage, in a later passage he [Augustine; this is a quote from a book by Henry Cotterill] speaks of Creation as of things brought into due order, -- "not by intervals of time, but by series of causes, so that those things which in the mind of God were made simultaneously might be brought to their completion by the sixfold representation of that one day."

Augustine reportedly used the illustration of a seed growing into a tree, "even so as in the grain itself there were invisible all things simulltaneously which were in time to grow into the tree, so the world itself is to be thought of, when God simultaneously created all things, as having at the same time in itself all things that were amde in it and with it, when the day itself was created: not only the heaven with the sun and moon and stars, and so forth, but also those things which the water produced by potency and causal energy before that, in due time, and after long delays, they grew up in such a manner as they are now known to us in those works of God which He is working even to the present hour."

As for Augustine, all he was concerned about was saving souls, love and forgiveness, and finding peace with God. Everything else was extraneous and less than unimportant. What matters isn't how the heavens go, but how to go to heaven:

"With the scriptures it is a matter of treating about the faith. For that reason, as I have noted repeatedly, if anyone, not understanding the mode of divine eloquence, should find something about these matters [about the physical universe] in our books, or hear of the same from those books, of such a kind that it seems to be at variance with the perceptions of his own rational faculties, let him believe that these other things are in no way necessary to the admonitions or accounts or predictions of the scriptures. In short, it must be said that our authors knew the truth about the nature of the skies, but it was not the intention of the Spirit of God, who spoke through them, to teach men anything that would not be of use to them for their salvation."

The Bible is full of myths, but not in the modern sense. For most people today, the word myth means fiction or fallacy. But for people throughout time in many cultures, myths describe much deeper truths than mere literalism can ever provide. To get hung up on literalism (whether defending or attacking the Bible) is to miss the point of the narative entirely.

Neither Fundies nor Atheists can get it through their thick dogmatic skulls (and yes, they are equally stupid and close minded, but in opposite directions) that arguing over the existence of a real Eden or Noah's Ark is a waste of time.

There is a Christian sect that has never had a problem with evolution, they're called Catholics. Though Pope John Paul II famously referred to evolution as being "more than a theory", what he said was in keeping with Catholic traditions and teachings. From the Catholic Encyclopedia entry on evolution :

Passing now to the theory of evolution as a philosophical speculation, the history of the plant and animal kingdoms upon our globe is but a small part of the history of the entire earth. Similarly, the geological development of our earth constitutes but a small part of the history of the solar system and of the universe. The theory of evolution as a philosophical conception considers the entire history of the cosmos as an harmonious development, brought about by natural laws. This conception is in agreement with the Christian view of the universe. God is the Creator of heaven and earth. If God produced the universe by a single creative act of His will, then its natural development by laws implanted in it by the Creator is to the greater glory of His Divine power and wisdom. St. Thomas says: "The potency of a cause is the greater, the more remote the effects to which it extends." (Summa c. Gent., III, c. lxxvi); and Francisco Suárez: "God does not interfere directly with the natural order, where secondary causes suffice to produce the intended effect" (De opere sex dierum, II, c. x, n. 13). In the light of this principle of the Christian interpretation of nature, the history of the animal and vegetable kingdoms on our planet is, as it were, a versicle in a volume of a million pages in which the natural development of the cosmos is described, and upon whose title-page is written: "In the beginning God created heaven and earth."

Don't be so quick to defend evolution just because the wingnuts hate it. Darwin led to the worst colonial, militarist, attrocity and stock market abuses in history. Lamarkian inhertiance and mitochondrial DNA show that Darwin was not all he is crackered up to be. So don't defend him!

As I said on another post AMEN Mostly.I am a biblical creationist Canadian.Mr Blackford says what many pro-evolution folk don't say.That the state must be neutral on religious issues.Yet in teaching evolution or not teaching creationism it is not being neutral but saying our side is wrong.If you can't teach the bible is true then you can't teach its not true where its a neutral equal separation clause.

Since teaching origins is a clear statement by the state of what the origins actually are then in prohibiting creationism as a option the state is clearly saying Genesis is false. So a opinion on religion to many.If the state teaches evolution is true and nothing else is then this alone is a opinion on the bible for many Christians.

The law is used to censor the opinion of a slight majority under the name of separation. You can't teach the bible because it looks like the state is agreeing with the bible. Then they teach about origins that is contrary to the bible. We say your teaching the bibles untrue. they say they are teaching science.the law is the law.If you can't, just because of the law, teach Genesis then you can't, just because of the law, teach Genesis is false.

The out is simply to say that the state is the state and not everything it pays for.

Mr Byers, I am emphatically NOT saying that the state should not teach evolution. Evolution is science, and children should learn about science.

I am absolutely saying that evolution SHOULD be taught by the state. It should be taught in a religion-blind way. I.e. there is no reason for a teacher to mention in a science class that creationism even exists. Creationism is religion, and does not belong in a science class. Evolution is science, and it definitely DOES belong in a science class.

But that's not a reason for teachers to go out of their way to attack religious doctrines, whether it's the Genesis account of creation, or the Catholic doctrine of transubstantiation, or the supposed finality of the Koran, or idea of achieving moksa through conformity with dharma and meditation, or the wisdom of sacrificing cattle to avoid being struck down by Zeus's thunderbolts. Where necessary (perhaps in a history class), discuss them politely as things that some people believe or have believed, but don't give any of them special credence.

Hence, in a biology class, evolution should be taught with no reference at all to religious doctrines. If they are brought up by students, teachers should explain politely that they are not science and have no scientific support. In a history class or a literature class, or whatever, a wide range of religious ideas may need to be discussed because of their historical influence or literary treatment. They should be discussed with neither the teacher's endorsement nor the teacher's disparagement - but of course there has to be a margin for pedagogical discretion in such classes or teaching such subjects will be impossible.

I know you did not say to prohibit evolution. I was making a line of reasoning that what you said in fact makes the creationist case for equality in science class in either prohibiting or talking about origins.

You are agreeing that the separation concept prohibits badmouthing creationism. You said say nothing folks about its existence.Its the law that the state can not say creationism is false and the Christian doctrines its based on.AMEN.Yet in teaching evolution only one is doing that.The state by prohibiting God/Genesis is saying either its not true or even if it was true one still could not teach it.Therefore since it can't be taught and its nonsense to say science class is avoiding the truth on origins then the state is officially saying creationism is false.A line of reasoning.I do well with this argument everywhere though Canadian.

The state insists that it must and does teach the truth on origins but there is no creationism.So the state is saying creationism is not true. (unless its saying true or not there can be no talk which is unlikely)The state is saying its the law that prohibits creationism based on neutrality of church/state.Then with the big NO to creationism on the truth of origins the state teaches what is true.Well then since this truth of evolution means the bible is false in some doctrines for many then the state is saying the bible is false.The state has a opinion on the bible's teachings.The state teaches opposite to it.The state is not neutral on genesis.

its not about science but about the facts of origins.One side being censored is a big statement about its being factual since origin subjects are taught clearly as if the truth is the dominant motive.Teaching evolution is exactly as it seems to half the population as teaching the bible is false. They are right.

No reference to religion in biology class? I bet anything they teach there was religious ideas first that were later shown to be wrong by science. I always not they say this.

Its hard to teach something is true without the opposite implied is not true.The state teaches exclusively evolution. The state has a opinion on the truth of origins.The state is teaching the kids the bible is not true.The bible comes for rebuttal and a law is shoved this way about separation.Separation is separation and not just separation of one from the other. Not one way but both ways.

Whats censoring creationism is not science but a law about separation of church and state.

I insist. if you can't teach the bible as a option you can't teach the bible is not a option on origin subjects in science class.

I think your mixing up that creationism is not taught because you say its not science.Its actually not taught because of the law.Without the law legislatures would vote it in.

You're wrong in your thinking by believing that state schools should not teach anything that might contradict someone's religion.

State schools should teach science. They should not take cognisance of whether some religious group (perhaps with a large number of adherents, perhaps with a small number of adherents) believes something inconsistent with the science. That is allowing religion to control what gets taught.

If such a contradiction exists, then the student will have to figure it out. She can ask her parents or her priests, or read philosophy books, or whatever. She may decide to change her religious views to conform with the scientific evidence, or she may decide to accept the science only provisionally (i.e. understanding it for the sake of exams but having private reservations), or there may be other options available to her, such as adopting some form of epistemic relativism, or deciding that it's a mystery how her religion could still be correct despite the evidence, or something else that I haven't even thought of.

No one says that it will be easy when religions are unable to reinterpret their doctrines, holy books, etc., in a way that conforms with what we have found out about the world through science. But that's not a reason to deny children the chance of a good education.

What science teachers should not try to do is tell her that her religious beliefs are superstition. She might come to that conclusion herself, but she might not. There may be several other options for her, but science teachers are not the right people to talk to her about what they are.

I'm not saying state schools should not contradict religion. We were discussing the law. Very different.

The separation concept is used to censor/prohibit creationism..Thou shalt not say Genesis is true!My answer, I believe the future winning creationist answer, is that if the state says Genesis is false then it is breaking the separation concept too.Separation means neither state or church can interfere with the other.

The state by (1) denying God/Genesis as a option in origins and (2) by directly teaching evolution IS making a state opinion to the people that some christian doctrines , for many, are plain not true.

Again this is not about science. The law used here to censor creationism is about church/state.First things first.Later the public can decide if creationism is okay as evidence for origin conclusions.

You did on several threads here give a legal position I liked. More to the point that its a two way street.I'm saying its a four lane two way street.